October 8, 2006

Viva Sherwin Williams

In Ohio, the Sherwin-Williams Company has taken a novel approach to “public interest” lawsuits brought by the cities of East Cleveland, Columbus and Toledo, claiming damages for the use of lead-based paints in houses in those cities in past decades. Rather than relying on defenses in the state-court cases, the company has taken the offensive and has filed a separate lawsuit in Federal court, seeking to enjoin the state courts from considering these lawsuits on constitutional grounds. In the complaint, Cleveland-based Sherwin-Williams says,

“Sherwin-Williams is asking the court to prevent the Ohio cities from proceeding, arguing that it’s unfair to be held accountable for lawful actions that occurred long ago, before medical science could determine health risks associated with lead paint. It argues that the owners of property where lead paint has been allowed to deteriorate are responsible for injuries that result when that paint is ingested by children.

“Sherwin-Williams argues the public nuisance claims made by the plaintiffs ‘are arbitrary, impermissibly vague’ and so long after the fact that they deny the company due process.”

Although there are going to be several obstacles to this claim, including abstention doctrines, I find it refreshing that a company has considered that the 14th Amendment might actually be available to provide some relief to the tyrannical use of litigation in state courts to challenge the sale of products which were legal, beneficial, and sold in conformance with all state and Federal regulations at the time they were sold and applied.

The common wisdom among most constitutional lawyers is that the protections against oppressive state action afforded under the 14th Amendment are not available to protect corporations from product liability litigation under state law. I applaud this company’s willingness to challenge that position.